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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

15 FLRA No. 93
INTERNAL REVENUE SERVICE,
JACKSONVILLE DISTRICT
Activity
and
NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 93
Union
Case No. O-AR-386
DECISION
This matter is before the Authority on exceptions to the award of
Arbitrator Edwin R. Render filed by the Agency and the Union under
section 7122(a) of the Federal Service Labor-Management Relations
Statute and part 2425 of the Authority's Rules and Regulations.
The parties submitted to the Arbitrator the issue of whether the
Activity violated the representation rights provision of the parties'
collective bargaining agreement /1/ by refusing to permit requested
union representation during the Activity's investigatory interviews of
the four grievants. In the instances of Grievants Wills, Malanowski,
and Taraska the Arbitrator essentially concluded that no reasonable
belief that the examinations might result in discipline had been
substantiated and the Arbitrator denied their grievances. As to
Grievant Rodriguez the Arbitrator concluded that such reasonable belief
had been substantiated, and he sustained her grievance insofar as it
requested that her statements be excluded from any disciplinary action
against her.
The Agency in its first exception to the award contends that the
award exceeds the scope of the issue presented. In support of this
exception, the Agency's argument is that the Arbitrator mentions in the
course of his discussion of the matter an initial incident when no
interviews were conducted because of requests for union representation.
Because the grievance was sustained only to the extent of the statements
of Grievant Rodriguez that were made during the interviews specifically
in dispute, this exception provides no basis for finding the award
deficient.
In its second exception the Agency contends that the Arbitrator's
finding that Grievant Taraska, whose grievance the Arbitrator denied,
requested union representation is based on a nonfact. However, this
exception constitutes nothing more than disagreement with the
Arbitrator's finding of fact as to whether Grievant Taraska requested
representation and provides no basis for finding the award denying her
grievance deficient.
The Union in its exceptions contends that the award is contrary to
section 7114(a)(2)(B) of the Statute /2/ and does not draw its essence
from the collective bargaining agreement because the Arbitrator
erroneously applied a subjective test to whether the grievants had a
reasonable belief that the examinations might result in discipline.
Citing Internal Revenue Service, Hartford District Office, 4 FLRA 237
(1980), enforced sub nom. Internal Revenue Service v. FLRA, 671 F.2d 560
(D.C. Cir. 1982), the Union argues that under section 7114(a)(2)(B) the
reasonable prospect of discipline must be determined from objective
circumstances.
The Authority concludes that the Union's exceptions provide no basis
for finding the award deficient. The Arbitrator in his discussion
accompanying his award specifically cited IRS, Hartford and specifically
concluded that
the standard to be used in ascertaining whether an employee
"reasonably believes" that discipline might be imposed is one of
relying upon "objective" considerations, including such external
evidence as the facts, the affected employee's conduct and other
surrounding circumstances.
The basis for the Union's contention is the Arbitrator's mention of
subjective considerations in his discussion accompanying the award.
However, because these references do not substantiate that the
Arbitrator's ultimate determination that Grievants Wills, Malanowski,
and Taraska had no reasonable belief that the examinations may have
resulted in discipline is contrary to either section 7114(a)(2)(B) or
the collective bargaining agreement, the Authority finds that the Union
has not established that the denial of the grievances is deficient.
Rather, these exceptions in essence constitute nothing more than
disagreement with the reasoning and conclusions of the Arbitrator in
arriving at his award denying those grievances.
Accordingly, the exceptions of both the Agency and the Union are
denied.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The parties stipulated that the agreement revision is a
restatement of section 7114(a)(2)(B) of the Statute.
/2/ Section 7114(a)(2)(B) provides:
(2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
. . . .
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.